Bombay High Court
Nagnath S/O Kishan Kondhekar vs Binduram S/O Tuljaram Jadhav on 2 December, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.115 OF 1992
WITH
CIVIL APPLICATION NO.11602 OF 2014
Nagnath Kishan Kondhekar
Since deceased through legal representatives -
1) Ram Nagnath Kondhekar,
Age 67 yrs., Occ. Pensioner,
R/o Labour Galli, Nanded,
Tq. & Dist. Nanded.
2) Ganesh Nagnath Kondhekar,
Age 57 yrs., Occ. Service,
R/o as above.
3) Kisan Nagnath Kondekar,
Age 50 yrs., Occ. Service,
R/o as above.
4) Chandrakant Nagnath Kondekar,
Age 47 yrs., Occ. Service,
R/o as above.
... Appellants
... Versus ...
1) Binduram Tuljaram Jadhav,
Since deceased through legal representatives -
1/I) Shakuntalabai w/o Binduram Jadhav (Died)
1/II) Parashuram Binduram Jadhav
1/III) Thakur @ Murlidhar Binduram Jadhav
Since deceased through legal representatives -
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2 SA_115_1992_Jd
1/III/A) Manju w/o Murlidhar Jadhav,
Age 55 yrs., Occ. Household,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
1/III/B) Ravi Murlidhar Jadhav,
Age 23 yrs., Occ. Labour,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
1/III/C) Deepa d/o Murlidhar Jadhav,
Age 22 yrs., Occ. Household,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
1/III/D) Priyanka d/o Murlidhar Jadhav,
Age 20 yrs., Occ. Household,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
1/III/E) Renuka d/o Murlidhar Jadhav,
Age 18 yrs., Occ. Household,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
1/III/F) Sadhana d/o Murlidhar Jadhav,
Age 17 yrs., Occ. Household,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
1/III/G) Gaurav Murlidhar Jadhav,
Age 15 yrs., Occ. Labour,
R/o Dongarkada Phata, Tq. Kalamnuri,
Dist. Hingoli.
(Respondent Nos.1/III/F and 1/III/G are minor and
under Guardianship of their natural mother i.e.
respondent No.1/III/A)
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3 SA_115_1992_Jd
1/IV) Basantabai w/o Ashokrao Jadhav (Died)
Since deceased through legal representatives -
1/IV/A) Sunil Ashok Jadhav,
Age 32 yrs., Occ. Business,
R/o Osmanpura, Aurangabad.
1/V) Lajubai w/o Shivajirao Jagtap
2) Babulal Tuljaram Jadhav (Died)
3) Chandrabhagabai w/o Bhujangrao Pinnamkar
... Respondents
...
Mr. P.P. Mandlik, Advocate for appellants
Mr. M.V. Ghatge, Advocate for respondent Nos.1(II), 1(III) and 1(IV)
Mr. B.N. Gadegaonkar, Advocate for the respondent No.1(V)
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 28th SEPTEMBER, 2021
PRONOUNCED ON : 02nd DECEMBER, 2021
JUDGMENT :
1 Present appeal has been filed by original defendant No.1 (now
the sole appellant has expired and his legal representatives are brought on
record) to challenge the concurrent Judgment and Decree. Present
respondent Nos.1 and 2 (both expired during the pendency of the Second
4 SA_115_1992_Jd
Appeal, through legal representatives) filed Regular Civil Suit No.423/1980
before Joint Civil Judge Junior Division, Nanded for declaration of title and
recovery of possession of the suit property. The said suit was decreed on
29.03.1985. Both the original defendants then challenged the said Judgment
and Decree by filing Regular Civil Appeal No.113/1985. The said appeal was
partly allowed by 3rd Additional District Judge, Nanded on 14.01.1992. The
Judgment and Decree passed by the Trial Court was partly set aside and
modified. The suit was dismissed as against original defendant No.2.
However, Judgment and Decree passed by the Trial Court in respect of the
suit property to appellant No.1 i.e. original defendant No.1 was maintained.
Hence, the original defendant No.1 has filed this Second Appeal.
2 Before proceeding further, the record reflects that by order dated
04.03.1992 the Second Appeal was admitted without formulating any
substantial question of law and then by order dated 29.10.2014 this Court
directed both the parties to make submissions on the point of substantial
question of law. Accordingly, by order dated 02.12.2014 following
substantial questions of law are framed.
(I) Whether the Courts below were justified in holding that
Rupanbai was not authorized by Madanlal and Babulal to
execute sale deed dated 17.03.1971 in favour of appellant No.1
5 SA_115_1992_Jd
Nagnath Kishan Kondhekar ?
(II) Whether the suit instituted by the plaintiffs is barred by
limitation ?
(III) Whether the plaintiff is entitled to any relief in the
absence of seeking declaration of cancellation of sale deed dated
17.03.1971 ?
3 Before proceeding further to decide those substantial questions
of law it would be necessary to consider the facts of the case in nutshell.
Original plaintiffs had come with a case that suit property is admeasuring 39'
x 72' North-South bearing old House No.4-2-120 and new House Nos.4-3-58
and 4-3-59 situated at Lohar Galli, Nanded was owned by their father
Tuljaram. Tuljaram expired on 28.11.1961, who was survived by widow
Rupanbai and three sons i.e. plaintiff No.1 Binduram, plaintiff No.2 Babulal
and one Madanlal. All the three brothers were serving and residing in the
State of Andhra Pradesh along with their mother Rupanbai. It is then
contended that plaintiff No.1 Binduram had filed Regular Civil Suit
No.8/1966 for partition and separate possession against the two brothers and
mother, which was decreed ex-parte. In the said suit the partition was
effected in the form that mother received open space admeasuring 24' x 39'
on the Northern side. On the Southern side portion the constructed house
was divided into three parts. The Eastern part out of that constructed portion
6 SA_115_1992_Jd
went to Binduram, Madanlal was given Western part and the middle part was
given to plaintiff No.2 Babulal. In the execution proceeding the respondent
No.1 recovered his share in 1978. Rupanbai expired in the year 1974. It is
their contention that since all the brothers were residing in Andhra Pradesh,
they had given the suit house on leave and licence basis to one Tulsiram
Narayan, who was their relative. He was in possession of the said property
till March, 1972. It was then contended that the defendants in collusion with
said Tulsiram created forged documents of sale deed purporting to show that
Rupanbai as a Power of Attorney of plaintiff No.2 Babulal and Madanlal. In
fact, they never executed registered sale deed nor they had authorized
anyone interse to execute the sale deed. It is then contended that plaintiff
No.1 had purchased share of Madanlal and also the property which was to
the share of Rupanbai under registered sale deed dated 25.09.1978. Since
the defendants are in unauthorized possession, they prayed that declaration
be given in respect of their title and also for recovery of possession with
mesne profits.
4 Both the defendants resisted the claim by filing written
statement. At the costs of repetition, it can be said that since the First
Appellate Court had modified the decree and suit was dismissed as against
appellant No.2 Chandrabhagabai and the original plaintiffs have not
7 SA_115_1992_Jd
challenged that decree either in this appeal or by filing a separate appeal,
therefore, we are concerned with the portion which is in possession of
defendant No.1 and, therefore, relevant recitals would be taken. Defendant
No.1 in his written statement contended that plaintiff No.2 had lost his title
to the suit house in view of registered sale deed executed by Rupanbai in his
favour as Power of Attorney of plaintiff No.2. In fact, she had sold out her
own share as well as share of plaintiff No.2 under Power of Attorney as well
as that of Madanlal by executing registered sale deed on 17.03.1971. That
property was purchased by him for a consideration of Rs.5,000/-. In fact, the
said premises as well as that open land was already in possession of
defendant No.1 as tenant. Thereafter, after the execution of sale deed his
possession is that of owner. He had paid the amount to Rupanbai in presence
of Sub-Registrar. It has been denied by the defendant that the said sale deeds
were got fraudulently executed from the mother of the plaintiffs. The sale
deeds dated 17.03.1971 and 10.11.1971 in favour of defendants is perfectly
legal and valid. When Rupanbai was not having open space of her
ownership, there is no question of plaintiff No.1 getting that property of
Rupanbai in his favour. It was then contended that the original Power of
Attorney of Babulal and Madanlal executed in favour of Rupanbai are with
plaintiff No.1, as after death of Rupanbai he took the entire management in
his hand. Since the plaintiffs are not the owners and possessors, the suit was
8 SA_115_1992_Jd
liable to be dismissed.
5 As aforesaid, the Trial Court held that the plaintiffs are the
owners of the suit property and the sale deeds executed by Rupanbai as the
Power of Attorney of plaintiff No.2 Babulal and Madanlal in respect of their
share in favour of defendant No.1 are forged. Defendant No.1 failed to prove
that Rupanbai was General Power of Attorney holder. The sale deeds in
favour of the defendant No.1 are illegal and they have not created any title in
favour of him. He is not bona fide purchaser for value without notice and,
therefore, as aforesaid, the suit was decreed, however, the learned First
Appellate Court held that the sale deed in favour of Chandrabhagabai-
original defendant No.2 is legal and valid, however, that of present appellant-
original defendant No.1 is invalid. The defendant No.1 had failed to prove
the execution of the Power of Attorney and, therefore, as aforesaid, the
decree was modified by partly allowing the appeal.
6 Heard learned Advocate Mr. P.P. Mandlik for appellants, learned
Advocate Mr. M.V. Ghatge for respondent Nos.1(II), 1(III) and 1(IV) and
learned Advocate Mr. B.N. Gadegaonkar for the respondent No.1(V).
7 It has been vehemently submitted on behalf of the appellants
that the Courts below have not appreciated the evidence property in respect
9 SA_115_1992_Jd
of property, that is, purchased by the defendant No.1. The first and the
foremost point is that if we consider the plaint, then there was absolutely no
prayer of setting aside the sale deeds and also the General Power of Attorney
in favour of Rupanbai. In absence of which the declaration as prayed that the
plaintiffs are the owners of the suit property could not have been given. The
plaint itself was defective and, therefore, it could not have been decreed even
as against the original defendant No.1. Only plaintiff No.1 entered the
witness box and plaintiff No.2 did not step into the witness box and many
admissions have been given by him. Those admissions have not been
considered. It is an admitted fact that though the property was situated in
Nanded, all the family members including the plaintiffs were residing at
Hyderabad. Then definitely somebody would be looking after their property
and it is then stated that one Tulsiram, who was inducted as licencee in 1948,
was looking after the property till March, 1972. That person has not been
examined. It is to be noted that though PW 1 Binduram is stated to have
instituted suit for partition in the year 1966 and the decree was passed on
04.02.1968, he had not got possession of the respective portions till 1978.
Therefore, it can be said that whatever portions the plaintiffs are contending
were as per their own convenience and then PW 1 Binduram says that he
purchased the share of Madanlal on 25.09.1978. It is also to be noted from
the cross-examination that all the heirs in between there were tenants in the
10 SA_115_1992_Jd
suit property. In fact, in his cross-examination he has claimed ignorance, as
to whether the share of Madanlal and plaintiff No.2 from the house was
transferred in the name of defendant No.1. He does not know about the
proceedings taken before the Municipal Corporation for getting the names
mutated and thereafter the defendant No.1 was paying the taxes. There is no
question of playing fraud by the defendant No.1. He then admits that he had
seen the original Power of Attorney executed by Madanlal and Babulal in
favour of their mother. He says that in view of the said Power of Attorney
their mother Rupanbai had executed registered sale deed in favour of
defendant No.1. One M.G. Bapurao had signed the said sale deed as
attesting witness. He then admits that he had also seen the original sale
deed. Inspite of these clear admissions both the Courts have come to the
conclusion that the plaintiffs are having title over the property and it is stated
that still the defendant No.1 ought to have proved the Power of Attorney
given to Rupanbai and under that character Rupanbai had executed sale
deeds in favour of defendant No.1.
8 It has been further submitted on behalf of the appellants that in
fact, at the time of suit the original General Power of Attorney was not
produced but true copies were produced at Exhs.68 and 69, by giving notice
to produce to the plaintiffs as per Section 66 of the Indian Evidence Act.
11 SA_115_1992_Jd
Thereafter the permission was taken to lead secondary evidence and after
DW 3 Baburao Ubale was examined, they were exhibited as Exhs.68 and 69.
At that time, the true copy of the carbon copy was produced and then the
secondary evidence has been led. However, now, by Civil Application
No.11602 of 2014 original General Power of Attorney has been produced and
permission has been sought under Order 41 Rule 27 of the Code of Civil
Procedure. The explanation, the appellants want to give for belated
submission of the original, is that in the third week of November, 2014 when
the applicants had taken cleanliness drive of their house, then they found
some papers and in that they found the original General Power of Attorney
dated 16.03.1971. It is to be noted that this application has been given by
the legal representatives of the defendant No.1 who were unaware about the
pendency of the Second Appeal filed by their father. Therefore, there was no
occasion for them to produce those documents at any earlier stage. Under
the said circumstance, now when the original Power of Attorney has been
produced, it can be taken that under those documents Rupanbai had
authority to sell the portion of the house, which had gone to the share of
Madanlal and Babulal. Again at the costs of repetition, it has been submitted
on behalf of the appellants that as plaintiff No.2 Babulal had not at all
entered the witness box but now the original General Power of Attorney is
coming on record, adverse inference is required to be drawn against him.
12 SA_115_1992_Jd
9 Further submissions have been made on behalf of the appellants
that both the Courts below failed to consider the point of limitation. When
they were seeking declaration of their title then the suit ought to have been
filed within period of three years. The admissions on record given by PW 1
Binduram would make it clear that he as well as his brothers were having
knowledge about the execution of the sale deeds. The suit was hopelessly
barred and, therefore, ought not to have been entertained. Further, when the
plaintiffs were coming with a case that the sale deeds which are in favour of
original defendant No.1 having got executed by playing fraud on Rupanbai,
then the details of the fraud ought to have been given as per Order VI Rule 4
of the Code of Civil Procedure. In absence of those details it cannot be said
that those sale deeds were got executed by playing fraud. Both the Courts
below have wrongly held that educated persons will not give General Power
of Attorney to an illiterate lady. In fact, contents of General Power of
Attorney would show that in view of the fact that the sons were preoccupied
with their services; one was in Military and another was in S.T. Department,
they were unable to come to Nanded. Question of educated and uneducated
was not involved, but that of convenience was involved. The First Appellate
Court protected the transaction between Rupanbai and defendant No.2 on
the ground that she herself was the executant of the documents and she was
present. But then, First Appellate Court failed to consider that Rupanbai had
13 SA_115_1992_Jd
every knowledge about what amounts to sale and how the negotiations were
to be held. All those details had come on record in the evidence. The First
Appellate Court ought to have protected the transaction between the
defendant No.1 and the plaintiffs through General Power of Attorney
Rupanbai. The substantial questions of law are, therefore, required to be
answered in favour of the appellants.
10 In support of his contention, the learned Advocate for the
appellants has relied on the decision in Smt. Dayawati and others vs. Madan
Lal Varma and others, AIR 2003 ALLAHABAD 276, wherein it has been held
that when the suit is for declaration of sale deed as null and void, then the
limitation is as per Article 58 of the Limitation Act and the suit has to be filed
within three years of the date of the accrual of the cause of action. The suit
filed after the lapse of 13 years from the date of execution of the sale deed
was held to be barred by limitation.
10.1 The reliance has also been placed on the decision in Sanjay
Kaushish vs. D.C. Kaushish and others, AIR 1992 DELHI 118(1), wherein it
has been held that -
"In case, from bare reading of the plaint and the admitted documents
and the facts coming out in the statement of the plaintiff under Order
X of the Code of Civil Procedure, the Court could come to the
14 SA_115_1992_Jd
conclusion that the plaint does not disclose cause of action or the suit
is barred by limitation or is not maintainable, the Court can decide
the said points even without recording the said evidence."
10.2 Further reliance has been placed on Syed Abdul Khader vs. Rami
Reddy and others, AIR 1979 SC 553, wherein it is held that the Power of
Attorney is not a compulsorily registrable document. This decision is also
relied in respect of application for adducing additional evidence and it is
stated that when this Court would come to the conclusion that the Judgment
cannot be pronounced without the production of that document and it is now
produced, then its production be permitted. It has been held in this case that
-
"It is well established that Order 41, Rule 27, C.P.C. does not confer a
right on the party to produce additional evidence. But if the Court
hearing the action requires any document so as to enable it to
pronounce judgment, it has the jurisdiction to permit additional
evidence to be produced. The High Court has given cogent reasons
why it felt impelled to permit production of registered sale deeds so
as to enable it to pronounce judgment in the matter. If the High
Court considered the production of registered sale deeds essential so
as to enable it to pronounce judgment, there is no reason why the
Supreme Court should interfere with the discretionary power properly
exercised by the High Court in the interest of Justice. Even otherwise,
the High Court was justified in permitting additional evidence to be
produced when it consisted of registered sale deed. Such additional
evidence has to be read as part of the record."
15 SA_115_1992_Jd
10.3 On the same line regarding the registration of the Power of
Attorney, reliance has been placed on the decision in T.V. Kochuvareed and
another vs. P. Mariappa Gounder and other, AIR 1954 TRAVANCORE-COCHIN
10, wherein it has been held thus -
"Where the effect of a power of attorney was only to constitute a
person as the duly authorized agent of its grantor, to do all acts, as
specified therein, on his behalf, in respect of his properties it cannot
be said that it has the effect of creating a right, title or interest,
whether vested or contingent, in favour of the power of attorney
holder in respect of immovable properties of the grantor and hence
does not fall either within S. 17 or S. 18. Mere fact that such
document is registered and has not been cancelled cannot attract
operation of S. 50 so as to render ineffective and inoperative a
subsequent unregistered lease in favour of the power of attorney
holder. With the execution of the lease, position of the power of
attorney holder as an agent ceases and the power of attorney cannot
be held to have any operative force thereafter."
11 Lastly, the learned Advocate appearing for the appellants
submitted that both the Courts below have not considered that Madanlal was
necessary party to the proceeding, as it was alleged that he had executed the
Power of Attorney in favour of Rupanbai and then Rupanbai has sold his
portion to defendant No.1. Inspite of that it appears that even Madanlal had
later on sold the same property to plaintiff No.1. Madanlal has not even been
examined as a witness. Thus, both the brothers, who had given Power of
16 SA_115_1992_Jd
Attorney to their mother have not entered the witness box and denied the
said document and, therefore, the suit ought to have been dismissed, so also,
the appeal ought to have been allowed, when the lacunas were pointed out
by the First Appellate Court. Now, the Second Appeal deserves to be allowed
by setting aside both the Judgment and Decree and also the application
needs to be allowed for adducing additional evidence.
12 Per contra, the learned Advocate Mr. M.V. Ghatge appearing for
respondent Nos.1(II), 1(III) and 1(IV) submitted that both the Courts have
appreciated the evidence properly and come to a proper conclusion as
regards the claim of the plaintiffs against the defendant No.1 is concerned.
The first and the foremost fact is that the original General Power of Attorney
was never produced before the Trial Court. In fact, in the written statement
it was specifically stated that the defendant No.1 is not having custody of that
document, rather it is with plaintiff No.1. On the production of said reason
even permission was sought to lead secondary evidence. In fact, the Trial
Court had wrongly allowed that application allowing the defendants to
produce secondary evidence and lead evidence to support those documents.
Neither in the testimony of DW 1 Nagnath nor in the testimony of DW 3
Baburao it had come on record, as to when the true copy of the General
Power of Attorney was prepared. What was produced was the true copy of
17 SA_115_1992_Jd
the carbon copy and without that explanation when the Court had permitted
the defendant to adduce the evidence, then at the end of appreciation of
evidence the Court has taken a proper view that, that authority itself has not
been properly proved. When the document authorizing Rupanbai to execute
the sale deed was never proved, those sale deeds could not have given title to
the defendant No.1. Interestingly now, after so many years the original has
been produced, that too, by the legal representatives of the defendant No.1
with some fictitious reason. This creates cloud of doubts over the documents,
taking into consideration the fact now coming that the original appear to be
in the possession of defendant No.1 where was the occasion for PW 1
Binduram to see the document of Power of Attorney, the admissions extracted
from him cannot be taken in isolation. They were the too general questions
and no specific question was put, as to exactly when he had seen that
document. Another fact to be noted is that those documents i.e. the General
Power of Attorney Exhs.68 and 69 were stated to have been attested by one
M.G. Bapurao. He is, in fact, the main person, who had created these
documents. Even when the testimony of the DW 1 Nagnath was going on,
said M.G. Bapurao was present in the Court hall. Still he was not examined
for the reasons best known to the defendant No.1. According to DW 1
Nagnath, he was inducted in the suit property by one Laxmibai. She is
neither owner nor real possessor. She was not authorized by the plaintiffs.
18 SA_115_1992_Jd
Under such circumstance, the induction, which has not been proved at all
prior to the alleged date of sale deed, cannot be considered to be a legal
entry of the defendant No.1 in the suit premises. In fact, the Article 65 of the
Limitation Act would be applicable here, as the plaintiffs are claiming
possession based upon their title and in order to put on the safer side they
have sought declaration regarding their title. Under such circumstance, it
was not even necessary to challenge the sale deeds because the plaintiffs had
come with a case that the title of Madanlal and Babulal was never got
transferred. Substantial questions of law as framed by this Court will have to
be answered in favour of the plaintiffs.
13 Substantial question of law Nos.I and III :
At the outset, it is to be noted that the plaintiffs had specifically
pleaded that in the civil suit the partition and separate possession was prayed
by plaintiff No.1 and accordingly the suit was decreed on 18.02.1969. As per
the said decree four portions were divided, but according to the plaintiff,
after the said decree their mother got the possession of the open land as per
the decree but the shares of the sons remained joint. Plaintiff No.1,
therefore, filed execution petition in the year 1976 and obtained possession.
However, according to them, defendants colluding with one Tulsiram and
Bapurao Ganpatrao created forged deeds purporting to have been executed
19 SA_115_1992_Jd
by one Rupanbai, Babulal and Madanlal, which they had never executed and
then brought into force the registered sale deeds dated 17.03.1971 and
10.11.1971. We are concerned with sale deed dated 17.03.1971 only, as the
suit against original defendant No.2 has been dismissed in appeal and there
is no further appeal by the plaintiffs. When they were claiming that still the
title is with them, it was for both the Courts below to scan the evidence and
accordingly after scanning the evidence they have contended that the
defendants have failed to prove the execution of Power of Attorney by
Babulal and Madanlal in favour of Rupanbai and, therefore, Rupanbai had no
authority to execute the sale deed in favour of present appellant. In order to
substantiate and protect his title defendant No.1 produced true copy of
carbon copy of the two separate Power of Attorneys. In his written
statement, he had come with a case that the Power of Attorney is in
possession of plaintiff No.1. In his testimony DW 1 Nagnath has said that the
original Power of Attorney is in possession of Rupanbai. She is not alive. The
original papers might be with plaintiffs or Madanlal after death of Rupanbai.
He then stated that one copy of the Power of Attorney, which is in his
possession, is attested by one Mr. R.S. Patil. He produced the same. As
aforesaid, those documents, which are at Exhs.68 and 69, are the true copies
of carbon copy. DW 1 Nagnath has not stated as to when the said true copy
was prepared and for what purpose. DW 5 Mr. R.S. Patil was the Dean of
20 SA_115_1992_Jd
Government Ayurvedic College, Nanded, who says that DW 1 Nagnathrao's
son was serving with Ayurvedic College, Nanded and he had brought two
documents on 07.03.1971. Those documents are the copies of original
document and then he signed those documents as true copies by tallying the
contents. He was then a Gazetted Officer, who could have endorsed the
documents as true copies. In his cross-examination, he has admitted that
Exhs.68 and 69 are not original typewritten copies. Under this circumstance,
when there is absolutely no explanation as to where the original typed copy
which was prepared on the basis of the original Power of Attorney is, it
cannot be stated that Exhs.68 and 69 were legally admissible documents.
The position as it stood before both the Courts below was the documents at
Exhs.68 and 69 were relied as the basis, of which Rupanbai got authority to
sell the suit property to defendant No.1. The above said reasons and
evidence would show that Exhs.68 and 69 cannot be said to be the legal
documents. Under such circumstance, when basic authority itself is not
proved; both the Courts below were justified in holding that there was no
necessity for the plaintiffs to either prove that fraud was committed on
Rupanbai or plaintiffs ought to have asked for declaration of cancellation of
sale deed dated 17.03.1971. It was utmost necessity for the defendant No.1
to produce and prove that Rupanbai had the authority. Plaintiffs could not
have been asked to place on record any negative evidence when they were
21 SA_115_1992_Jd
denying that any such authority was given. Another fact to be noted from the
record is DW 1 in his cross-examination has deposed that he had seen the
original General Power of Attorney in the year 1968-69 and not afterwards at
any time. When according to him, the said Power of Attorney came into
existence in the year 1971, there was no occasion for him to see the same in
the year 1968-69. According to him, one Mr. M.G. Bapurao was the witness
to Exhs.68 and 69. It can be seen from the cross-examination of DW 1
Nagnath that this person Mr. M.G. Bapurao was present in the Court on that
day, however, he was never examined on behalf of the defendants. Best
possible evidence, therefore, has been withheld leading to the adverse
inference against the defendant No.1.
14 Now, turning towards the application under Order 41 Rule 27 of
the Code of Civil Procedure, learned Advocate for the respondents has rightly
relied on the decision in Union of India vs. Ibrahim Uddin and another,
(2012) 8 SCC 148, wherein the law has been summarized in paragraph 48
thus -
"To sum up on the issue, it may be held that an application for taking
additional evidence on record at a belated stage cannot be filed as a
matter of right. The court can consider such an application with
circumspection, provided it is covered under either of the prerequisite
conditions incorporated in the statutory provisions itself. The
22 SA_115_1992_Jd
discretion is to be exercised by the court judicially taking into
consideration the relevance of the document in respect of the issues
involved in the case and the circumstances under which such an
evidence could not be led in the court below and as to whether the
applicant had prosecuted his case before the court below diligently
and as to whether such evidence is required to pronounce the
judgment by the appellate court. In case the court comes to the
conclusion that the application filed comes within the four corners of
the statutory provisions itself, the evidence may be taken on record,
however, the court must record reasons as on what basis such an
application has been allowed. However, the application should not be
moved at a belated stage."
Interesting to note that in the application for production of
original deed of General Power of Attorney the applicants are coming with a
case that they had taken cleanliness drive of the home in the third week of
November, 2014 and then discovered the documents. They contend that they
were never aware about filing of Second Appeal by their father. It is to be
noted that all the applicants are residing at the same place. Legal
representatives of original defendant No.1 are now aged 67, 57, 50 and 47
respectively having occupation pensioner and service respectively. It is hard
to believe that defendant No.1 would not have shared that he is fighting for
the house since long. Further, it is also hard to believe that since 1980 till
2014 there was no cleanliness drive in the house of the applicants. Further,
in the application they are not disclosing the exact place from where the
23 SA_115_1992_Jd
documents were discovered, whether they were in a bag or polythene etc. If
we see the condition of the two documents, they do not appear to have been
kept in an isolated, congested, untidy position. It is not even the case of the
applicants that these papers were wrapped in any envelope or paper and,
therefore, they could not notice the existence of the documents. That
wrapper has not been produced at all. Therefore, taking into consideration
the reasons in the application it cannot be stated that a case is made out to
take them on record, as contemplated under Order 41 Rule 27 of the Code of
Civil Procedure. Unless the conditions enumerated in Order 41 Rule 27 of
CPC are fulfilled, the application cannot be considered at all. This is the
position of law, recently reiterated by Hon'ble Supreme Court in H.S.
Goutham vs. Rama Murthy and another with companion matter, (2021) 5
SCC 241. Even in Syed Abdul Khader (supra) the same ratio has been laid
down. This application can also be considered from another angle also.
When at the outset the defendant had come with a case that the possession of
the document is with the opposite party and then he issues the notice to him
to produce that document, when the other party fails to produce it, the
defendant takes advantage of leading the secondary evidence, then now he
cannot come with a case that the possession of the document is with him.
The permission to lead secondary evidence was then obtained by the
defendant No.1 by suppressing the possession of the original with him. On
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that count also documents Exhs.68 and 69 are inadmissible. The Civil
Application, therefore, deserves to be rejected.
15 Both the Courts below have properly appreciated the evidence.
They were justified in drawing inference that in ordinary course the educated
sons will not give General Power of Attorney in favour of their old and
illiterate mother. DW 4 Devandas Gangaram Ranganani is the attesting
witness to the sale deed of defendant No.1. As per Nagnath i.e. defendant
No.1, the sale deed was executed for a consideration of Rs.2,000/-, however,
the attesting witness says that DW 1 Nagnath paid amount of Rs.500/- only
in his presence. The question then arises when the remaining amount was
paid. DW 1 Nagnath has not come with a case that the amount was paid in
parts at different times. He then says in cross that Rupanbai was selling her
own land under that sale deed Exh.66, which is a wrong belief. Even if we
consider that as an attesting witness his role was limited, but the fact is that
he has not given reason as to why he was knowing Rupanbai. In cross-
examination he has stated that he had no transaction with Rupanbai but at
the first time, Nagnath has introduced a lady as Rupanbai to him. He says
that a lady who impressed thumb mark was Rupanbai. There was no attempt
by defendant No.1 to get the thumb mark of the Rupanbai tallied with the
admitted. Anyway, when the document authorizing her to execute sale deed
25 SA_115_1992_Jd
was itself not proved. As aforesaid, the question of the details of fraud and
getting the sale deed cancelled will not arise at all. A person, who is not
authorized to execute the sale deed, cannot create title in favour of the
persons in whose favour the document is executed. Both the questions are,
therefore, answered in the affirmative.
16 Substantial question of law No.II :
Now, as regards the limitation is concerned, first and the
foremost thing is that in the written statement no such contention was raised
and, therefore, both the Courts have not framed the issue and point of
limitation respectively. Even if for the sake of argument we accept that the
said point can be raised for the first time in the Second Appeal, taking into
consideration that it is a mixed question of law and fact and sometimes it is
pure question of law; the alleged sale deed is executed on 17.03.1971. The
declaration has been prayed in respect of their own title by the plaintiff and
possession was sought. The suit was filed on 29.09.1980 and, therefore,
Article 65 of the Limitation Act would be applicable and not Article 54 or 58,
as canvassed. The suit is not limited for declaration only. In fact, on the
basis of the title, possession has been prayed. The ratio in AIR 2003
ALLAHABAD 276 will not be helpful to the appellants, as in that case it was
only the suit for declaration of sale deed as null and void. Here, basically the
26 SA_115_1992_Jd
suit is for possession. Other factual aspects, as to how the evidence adduced
by the defendant is unbelievable, have been dealt with by both the Courts
below, which need not be considered by this Court, in view of the fact that
the substantial questions of law arising are limited. Therefore, this
substantial question of law is answered in the negative.
17 The suit was within limitation, Rupanbai had no authority given
by either Madanlal or Babulal to execute sale deed dated 17.03.1971 in
favour of appellant Nagnath and the suit filed by the plaintiffs was legal even
in absence of seeking declaration of cancellation of sale deed, there is no
necessity to disturb the concurrent findings of the Courts below. Substantial
questions of law are answered accordingly and following order is passed.
ORDER
1 Second Appeal stands dismissed.
2 Civil Application No.11602 of 2014 stands dismissed.
( Smt. Vibha Kankanwadi, J. )
agd
27 SA_115_1992_Jd
Date : 02.12.2021.
Later on :
1 Learned Advocate appearing for the appellants, after
pronouncement of the Judgment, prays for continuation of the interim relief.
It is to be noted that all the three Courts, including this Court, have not
accepted the defence that has been taken by the present appellants. The suit
was filed in the year 1980 and the fruits of the decree are yet to be enjoyed
by the original plaintiffs. Under such circumstance, oral request stands
rejected.
( Smt. Vibha Kankanwadi, J. )
agd
